Canada: Draft Abuse Of Dominance Guidelines Both Clarify And Confuse

Last Updated: January 26 2009
Article by Christopher Hersh and Mark Nicholson

On January 17, 2009, the Competition Bureau released its Draft Updated Enforcement Guidelines for the Abuse of Dominance Provisions for public comment. While the Draft Guidelines represent a needed clarification of the Bureau's enforcement approach to the abuse of dominance provisions in light of the Canada Pipe decision, they advocate a broad approach to key substantive issues that creates the potential for considerable confusion for firms doing business in Canada.

Key issues raised by the Draft Guidelines include:

  1. the application of the "but for" competitive effects test;
  2. how the Bureau will assess whether a business justification is "valid"; and
  3. that independent conduct could be viewed as "joint" abuse of dominance.

If adopted in their current form, the Draft Guidelines will increase the existing uncertainty businesses face when determining how the abuse provisions apply to their operations. In addition to creating compliance concerns for companies with large market shares, the Draft Guidelines would require businesses who previously considered themselves to be "too small" to be concerned about the abuse of dominance provisions to rethink this view.

The "But For" Test

Consistent with the decision in Canada Pipe, the Draft Guidelines state that the Bureau will assess whether the conduct at issue has the requisite anti-competitive effect by considering whether "'but for' the practice in question, would there be substantially greater competition in the relevant market in the past, present or future?" The application of the "but for" test, can include considerations such as whether "but for" the conduct at issue, would prices be substantially lower, or quality, innovation or choice substantially higher, or the ability of consumers to switch between products/suppliers substantially higher.

In addition to the hypothetical nature of the "but for" test, the Draft Guidelines state that the Bureau reserves the right to adopt other tests to determine the competitive effects of the conduct at issue (an approach endorsed by the Federal Court of Appeal in the Canada Pipe case). Unfortunately, the Bureau did not take the opportunity offered by the Draft Guidelines to provide any insight as to the other possible tests it might use, or when it would deviate from the "but for" test. This open-ended approach to enforcement and complete lack of guidance on this point will increase the uncertainty businesses face in assessing risk under the abuse provisions.

Business Justification

Under the Draft Guidelines, the Bureau's position is that a valid business justification is not a "strict defence...but rather an additional factor" in determining whether the conduct at issue is an "anti-competitive act." According to the Draft Guidelines, there must be a "credible efficiency or pro-competitive rationale" such as reducing costs, or other similar types of improvements for the Bureau to consider a business justification as valid. In assessing this issue, the Bureau has indicated that it will only accept the validity of a business justification where it can be demonstrated that the pro-competitive effects could not have been achieved by other, less competitively-harmful, means. This makes it difficult for firms to assess the risk associated with a particular business initiative, as they face the prospect of having their business activities second-guessed by the Bureau after the fact and with the benefit of hindsight.

Novel Approach To "Joint" Dominance

The most unexpected aspect of the Draft Guidelines is their complete reversal of the Bureau's previous approach to the notion of joint abuse of dominance. According to the Draft Guidelines, the Bureau's position is that firms can be engaged in joint abuse of dominance where they are "each engaging in anticompetitive behaviour such that together they have market power." In other words, there would be no requirement for businesses to coordinate their conduct - independently adopting similar business practices (for example, common contractual provisions) could be sufficient for the Bureau to view them as engaging in "joint" abuse of dominance. In contrast, the guidelines now in place clearly require something more than independent parallel behaviour for the Bureau to conclude that firms may have engaged in joint abuse.

In our view, the position taken in the Draft Guidelines on this issue is not supported by the language of the abuse provisions, jurisprudence or economic theory - a view which seems to be substantiated by the complete lack of cited authority in support of the Bureau's position on this issue. If the Draft Guidelines are adopted as currently drafted, firms who did not previously view themselves as being impacted by the abuse provisions would have to consider whether they could be subject to proceedings under the joint abuse of dominance provisions simply because they have independently adopted common industry practices.

Summary

While the Draft Guidelines do provide some insight into the Bureau's enforcement approach, they also increase the potential uncertainty faced by businesses. Should the Draft Guidelines be accepted in their current form, firms doing business in Canada will have to carefully reconsider how the abuse of dominance provisions apply to their business initiatives and practices under this new paradigm.

The Bureau has invited the public to submit comments on the Draft Guidelines by April 20, 2009.

The Bureau's press release announcing the Draft Guidelines can be viewed at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02950.html

An electronic copy of the Draft Guidelines can be viewed at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02942.html

www.casselsbrock.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Christopher Hersh
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions